Friday’s judgment in Gotovina and Markac by the ICTY Appeals Chamber (summary; judgment), in which it by 3 votes to 2 reversed a unanimous Trial Chamber and acquitted the defendants, is a disaster at almost every level. I say this not as an aggrieved Serb lamenting the selectiveness of international justice and its failure to punish crimes against his own people – I have long since developed antibodies to all forms of nationalism, including the very virulent type thriving on self-victimization, and I have no personal axe to grind here. I say this rather as an international (human rights) lawyer who has always thought of the ICTY as an indispensable, if imperfect, instrument of justice for the atrocities of the Yugoslav conflicts. That said, how and why then is the Gotovina appeals judgment so bad? To my mind, the problem is not with the acquittal as such – even though as far as public opinion in the former Yugoslavia is concerned the bottom line is all that mattered. Rather, the problem is with the process, the reasoning, the appearances, and the broader repercussions that all these will have.

First, with regard to process: as the dissents by Judges Agius and Pocar correctly point out, the majority make a complete mess of the appellate standards for review. Readers will recall that in the common law-inspired procedure of the ICTY the main task of the Appeals Chamber is to correct errors of law made by the Trial Chamber. The Trial Chamber is owed deference with regards to its findings of fact, which are not to be disturbed lightly on appeal, but only if no reasonable trier of fact could have made the relevant finding on the strength of the record. In short, unlike in most continental systems, the appellate process should not amount a retrial, a de novo examination of the entire case. This ensures both procedural economy and the integrity of the exhaustive fact-finding process in the trial court.

While the majority endorses these standards as they are set out in the ICTY’s long-established jurisprudence, it does not actually follow them – to the extent that its approach to standards of review is actually even discernible, as I will now explain. The whole case ultimately turned around the Trial Chamber’s unfortunate finding that in assessing the shelling by the Croatian artillery of the four Serb towns in the separatist Serb entity in Croatia, chief of them Knin, any shell that fell further than 200 meters from a legitimate military target in the towns should be presumptively considered as evidence of an unlawful indiscriminate attack. The Appeals Chamber was actually unanimous that this rigid standard was not supported by the evidence in the trial record and was not given adequate reasons for by the Trial Chamber.

So far so good. But what the majority then does with this finding turns appellate review on its head. The majority does not explain whether the Trial Chamber’s error with regard to the 200 meter standard itself was an error of law or an error of fact. If it was the former, the majority would have had to articulate a new, proper legal standard for testing the facts established in the record, upon whose application we could know whether the shelling of Knin and the other towns was indiscriminate or not. If it was the latter, the majority would have had to pay due deference to the totality of the factual findings made by the Trial Chamber and should only have disturbed them if no reasonable trier of fact could have found that the shelling was indiscriminate on the basis of all of the evidence in the record.

But this is not what the majority of the Appeals Chamber in fact did. It rather treated the Trial Chamber’s error with regard to the 200 meter standard as a fatal flaw that unraveled the entire trial judgment, and proceeded with a rather bizarre form of de novo review of the facts on the apparent basis of the Trial Chamber’s failure to provide adequate reasoning as a legal error. It then went on to examine each item of evidence in clinical isolation, determined that essentially all other evidence depended on the core issue of the 200 meter standard, even though the Trial Chamber never assigned that standard such importance in the trial judgment itself, and proceeded to discard one by one almost all of the Trial Chamber’s principal factual findings (the majority does most of this work in paras. 64-67 of the judgment).

Thus, in the majority’s view the Trial Chamber’s error with regard to the 200 meter standard made it impossible to establish beyond a reasonable doubt whether the shelling of Knin and the other Serb towns was indiscriminate or not. In effect, the majority thought there was no standard that could supplant the erroneous 200 meter standard. The consequence of this agnosticism was the majority holding that no reasonable trier of fact could have found that Knin was shelled indiscriminately, even though, as Judge Agius pointed out in his dissent, it was undisputed that over 900 artillery projectiles fell on Knin in the course of one and half days in the absence of any resistance from the town itself (Agius dissent, para. 18). The majority similarly overturned the Trial Chamber’s finding that the distribution of projectile impacts in Knin could not be explained by the Croatian army engaging moving targets of opportunity. In this respect, as Judge Agius correctly observed (Agius dissent, para. 32), the majority’s reasoning becomes simply contradictory:

With respect to the one police car that was hit in Knin, the Majority assumes that HV [Croatian Army] artillery weaponry could be so accurate as to obtain a direct hit, but with regard to all of the military targets which had been pre-established with proper co-ordinates, the Majority effectively gives the HV the benefit of the doubt ad infinitum. I would be enlightened by an explanation from the Majority as to how, if the HV could be so accurate with regard to a moving object, it could miss military targets by hundreds of metres?

(Note the tone of the dissent, to which I will turn later).

The majority then went on to give the 200 meter standard a key role in its assessment of the existence of a joint criminal enterprise on the part of the Croatian leadership to ethnically cleanse the Croatian Serbs. In its view, the Trial Chamber considered unlawful shelling to have been an indispensable component of this enterprise, as this was the primary way of forcibly displacing civilians. Accordingly, as there was no way to establish beyond a reasonable doubt that the shelling was unlawful, there was also no way for a reasonable trier of fact to establish that a JCE even existed. In doing so, the Appeals Chamber essentially imputed to the Trial Chamber views that it had never adopted, and overturned yet one more factual finding by using de novo review of individual items of evidence taken in isolation, which it found lacking in the absence of the context of unlawful shelling. These included the transcripts of the meetings of the Croatian leadership at Brioni, evidence of numerous individual crimes on the ground perpetrated by Croatian forces, inflammatory speeches by Croatian president Tudjman, and the subsequent implementation of discriminatory measures designed to prevent the return of Serbs to Croatia.

With the JCE gone, the convictions had to be vacated. In a rather remarkable turn of irony, the majority then refused to enter convictions on alternate grounds (such as aiding and abetting), which were not pleaded in the original indictment or considered by the Trial Chamber, finding that this would effectively amount to a retrial and would exceed the proper scope of appellate review – which is precisely what they did in the remainder of the judgment.

Of course, there is nothing wrong with de novo appellate review as such, if we forget for a moment the majority’s assessing of individual items of evidence in isolation rather than in their totality. The problem here is one of institutional design. Not only did the majority of the Appeals Chamber think that they better appreciated the facts of the case than the Trial Chamber, but they did so from the absolutely passive position of not remedying in any way the (alleged) deficiencies in the evidentiary process at trial, which is what de novo review in a continental system would do. If, for instance, the evidence collected at trial really made it impossible to conclusively establish whether the shelling was indiscriminate, a court exercising proper de novo review could have reopened evidentiary proceedings and called new witnesses and experts. In the way it went about the matter, however, the majority combined the worst of both worlds.

So much about the law. What makes matters worse is that the majority’s reasoning is lacking in all practical wisdom. It not only overturns the Trial Chamber’s factual findings lightly, it does so casually, in a couple of paragraphs for issues where the trial judgment ran at hundreds of pages, and with apparent disregard for the consequences. Perhaps the individualized guilt of Gotovina and Markac really wasn’t there. Perhaps they should have been acquitted because they were not members of the JCE or their contribution to it was not a substantial one, or convicted on different grounds and given a lesser sentence. Without having sat in court for the many months of trial and without looking in detail at the whole record one simply cannot be sure, and those who say they are nonetheless are more likely than not victims of their own prejudice. But even if Gotovina and Markac were to be acquitted, was it truly necessary for the majority to disregard the considered views of the Trial Chamber on so many issues, and especially with regard to the existence of the JCE?

This is not only where the majority’s reasoning is especially problematic, but where it is most consequential. Note that people in Croatia and Serbia didn’t really care about the two generals as individuals; what they did care about was about how the Tribunal characterized the systemic nature of the crimes (or not), and it is here that the Appeal Chamber’s decision is at its most dramatic. From a unanimous Trial Chamber declaring that the highest ranks of the Croatian leadership, including President Tudjman, formed a joint criminal enterprise with the purpose of ethnically cleansing Serbs from Croatia, to a divided, 3 to 2 decision by the Appeals Chamber that no reasonable trier of fact could have found that JCE to exist on the evidence heard by the Trial Chamber. Not only is this outcome hard to rationally explain to non-specialists, it only serves to harden the conflicting nationalist narratives in Croatia and Serbia.

In Croatia, the appeals judgment is conclusive evidence that the war they fought with the Serbs was not only defensive and just, but also pure and unsullied. Yes, there were some crimes perpetrated against the Serbs, but this was done by a few bad apples, to an extent understandably inspired by revenge, not the Croat leadership and state apparatus. Rather than being ethnically cleansed, the Serbs left Croatia willingly, only because their own leaders told them to do so in order to make the Croats look bad in the eyes of the world. In Serbia, the judgment only confirms the perpetual victim narrative – the ICTY and the international community never really cared about crimes against Serbs, and the Tribunal has shown itself to be nothing more than a political court. Its credibility is now not just in tatters – it is nil. In assessing these two narratives, if that is even possible, the Croatian, victorious brand of nationalism is even more poisonous and harder to cure. To the Serbs, whose leadership were objectively undoubtedly the greatest villains of the wars of the 1990s, these wars ultimately brought nothing but misery and defeat. To the Croats, however, the war was a foundational event in the creation of their modern state, with all its accompanying paraphernalia, so that even those on the more liberal side of the political spectrum, like President Ivo Josipovic, have to pay it due obeisance, and have indeed done so in the wake of the generals’ acquittal.

The entrenchment of these narratives means that in Croatia in particular, but also in Serbia, there will be no appetite for any further attempts for reconciliation or the search for a common, if possibly objective, truth. Each will continue to live in their own bubble, their own little alternate reality. Civil society attempts to establish a regional truth and reconciliation commission (REKOM), whose success was unlikely to begin with, will now probably falter no matter how laudable they substantively are. Voices dissenting from the two official narratives will continue to be marginalized, and ever more so.

And finally, it is at the same time both fascinating and deeply disturbing to observe how the gloating Croats and crying Serbs (see this BBC report for some flavor) could so easily have found their respective roles reversed, if only one judge of the Appeals Chamber had changed his mind. While the Croatian nationalists will always say that a majority is a majority and that is that, dismissing the dissents completely, Serbs will also equally be able to point to the 5 international judges (3 judges of the unanimous Trial Chamber and 2 judges of the minority on appeals) who looked at the same record and voted to convict. Add to this the sheer vehemence of the disagreement between the majority and the minority, which is probably unprecedented in the ICTY’s jurisprudence. I personally cannot recall a judgment in which dissenting judges so bluntly stated that the majority was misinterpreting, ignoring and dismissing the findings of the Trial Chamber (Judge Agius), characterized the majority’s reasoning as ‘grotesque’ (Judge Pocar), suggested that its reasoning had other than purely legal motives (Pocar dissent, para. 30), and characterized the judgment as ‘contradict[ing] any sense of justice’ (ibid, para. 39). It is indeed a collective failure of the ICTY as an institution, and a professional failure of all those involved in the case, regardless of their good intentions, to have had a decision as important as this one ultimately decided by 3 votes to 2, and in such poor form.

18 Responses

Marko,
Thank you for this timely and spot on post.
We are so obsessed to strive for separating jus in bello and jus ad bellum, praising for una lex una iusticia omnibus … but in real life “victors” cannot see them being punished if “evil” has been pronounced in advance. Sort of, there won`t be two losers. Luckily there might be found some revolutionary exceptions to this rule time to time pushed forward by ECHR.
However it could be fascinating to see those “forces of God” behind this judgment…rarely one would think of legal seriuosness of the Court`s arguments..even those highly honoured Judges.

This is a brilliant comment. Let us hope that this “disaster” will not tarnish the contribution that the ICTY has made to the development of the law (by the time I finished this sentence I realised how empty and unrealistic this hope may be!). Rather, we have to examine the law from its dark side in accordance to Kennedy’s extravernacular projects to see what powerful players can gain from violating law, because this judgement is a violation of law, any sense of justice and common sense.

This was an interesting post, emphasizing many of the best points of the dissents, capturing their passion, and underlining the importance of the case.

For those interested, I’m pasting below what I think are the key operative sentences of the Appeals Judgement, although I recommend those interested read the whole thing – it’s quite short.

As to the question of whether the Appeals Chamber found factual or legal error – I agree it would have been better if the Appeals Chamber was explicit on this point. I think the best reading is that the Appeals Chamber found both. Specifically, the 200 meter standard – as an indicator of the intended target of a projectile – seems to be a factual error, and the inexplicable failure of the Trial Chamber to supply any reasoning for the 200 meter standard is a separate legal error. J. Pocar disagrees with the assessment of the 200 meter standard as a factual error (dissent, para. 10), but I think it makes more sense to understand the 200 meter standard as a factual determination (probable target) (or hundreds of factual determinations, given each use of the standard) with legal implications, rather than a legal determination.

I haven’t read the 1300+ page (?) Trial Judgement, so I can’t evaluate whether these errors are as central to the legal determinations of the legality of the shelling and the existence of the JCE as the Appeals Chamber states. That said, it does not seem that odd to me that the Appeals Chamber didn’t provide a new legal standard for the legal error of not providing any rationale for the 200 meter standard (itself a factual error). The legal standard seems pretty clear – “provide a reasoned basis.” The Appeals Chamber can’t be responsible for providing a reasoned basis for a factual determination, when it deems that factual determination erroneous.

If one accepts that the 200 meter standard was an error (easily done), and that it was central to the Trial Chamber’s determination of the illegality of the shelling and the existence of the JCE (less easily done), it seems to me that the Trial Chamber put the Appeals Chamber in a rather difficult position. The Appeals Chamber certainly could and should have been more explicit about the proper way to evaluate the evidence – this isn’t the first case at the ICTY involving shelling. But a full correction of the error, a full re-evaluation of the evidence, may have essentially been a trial de novo without the possibility of an appeal. That’s a problem if it leads to a conviction (even if it is technically allowed at the ICTY). A retrial has fair trial (speedy trial) problems at this point too, six years in. There’s an arguable case for a remand with an order to reconsider without the 200 meter standard (and some guidance, such as don’t use a single arbitrary standard for different situations, particularly without any rationale), but it doesn’t seem that odd for an Appeals Chamber to say, in effect, these convictions are a mess, and we’re done. The Prosecution had a chance to prove its case, the Trial Chamber didn’t really adopt the the Prosecution’s case but instead made up its own theory, that theory doesn’t work – and we’re sorry, but proceeding further would not serve the interests of justice at this point. That isn’t what the Appeals Chamber said, of course. Perhaps there’s a happy medium between a few dozen pages and a barely readable tome.

I make these comments with the greatest respect to the dissenting judges, those who disagree, and most of all those who suffered during the conflict.

Quotes follow:
Appeals Judgement

Para. 58: However, the Trial Chamber made no attempt to justify the 200 Metre Standard with respect to the factors Witness Konings identified, despite rejecting Witness Leslie’s proposed 400 metre range of error partly because it did not explicitly account for these factors.

Para. 61: The Appeals Chamber finds that there was a need for an evidentiary basis for the Trial Chamber’s conclusions, particularly because these conclusions relate to a highly technical subject: the margin of error of artillery weapons in particular conditions. However, the Trial Chamber adopted a margin of error that was not linked to any evidence it received; this constituted an error on the part of the Trial Chamber. The Trial Chamber also provided no explanation as to the basis for the margin of error it adopted; this amounted to a failure to provide a reasoned opinion, another error.

Para. 77: The Trial Chamber deemed almost all the additional evidence of unlawful attacks as equivocal when considered independent of the Impact Analysis.

The Appeals Chamber misapplied the standard of appellate review pursuant to Article 25 of the Statute of the Tribunal. It found that the standard applied by the Trial Chamber was wrong but it did not offer any alternative although it was required to do so. The Appeals Chamber is under duty to formulate a correct legal standard if it finds an error of law in the trial judgement arising from the application of an incorrect legal standard.
What I find particularly disturbing in its reasoning is the implication that hitting targets outside (any) limit around a legitimate target may not necessarily be illegal and this is because the Appeals Chamber did not provide any alternative standard; it could have said it should be 400 metres for example or five km but it remained silent on that; it simply rejected it without correcting the Trial Chamber’s standard.
Another disturbing aspect is the Appeals Chamber’s treatment of other evidence; it should not be ignored that the Trial Chamber did not base its findings only on the 200 Metre Standard. For example it used audio recordings of the Croatian President’s orders given to his generals in which he demanded that the Serb population leaves the region by particular routes. In spite of this the Appeals Chamber found that the movement of the population in the wake of the attacks did not amount to forced removal or deportation.

This new precedent, this time in the field of international criminal law, is one among many made in the Balkans, that will have serious consequences for the way wars are fought and justice is served in the international arena in this century.

We can easily imagine Israel being free to apply the same technique in driving out the Palestinians from Gaza

We could also conclude, based on the make up of the judicial majority, that acquitting Gotovina and Makrac was a collateral effect of the main purpose of this decision. To nullify the existence of a JCE and thus provide a new EU member with a legal and moral clean slate in terms of possible genocidal foundations of its statehood (let us not forget that Croatia already traveled this same road in history, in much more brutal fashion than any side in the recent Balkan conflicts displayed, and was let of the hook for the sake of brotherhood and unity under Communist Yugoslavia).
The nullification of a JCE also greatly goes in favor of those actors on the international stage, who would not like to be associated in terms of strategic assistance, logistical aid and political support to a permanent legal record that would historically tie them to such an event (anyone remembers Nuremberg, and what was left out?)

With this in mind, I can only wonder how the Trial Chamber had the opportunity to reach guilty verdicts in the first place.

I share your conclusion that reversing the TC judgment would be fine if (and only if) the Appeals Chamber undertook a more thorough analysis of the case. This is unfortunately not what happened. When reading the AC judgment, I cannot help feeling as if I was on a roundabout. Whatever direction one takes, he/she is always brought back to the same point (namely the 200m standards); no chance to escape this circle.

It is obviously too soon to analyse what is behind this judgment and where it will lead us (ICL) and them (people in the Balkans). I am nonetheless quite sure that sooner or later there will be interesting hypotheses as to whether the AC simply led itself enchanted (or bewitched) by one specific legal technicality (100m standards), ignoring all the other aspects of the case; or whether there was among the AC judges a “JCE” of its own…

As an old saying from the Balkans goes, “it is easy to be a general after the battle”. I think this sums up quite nicely the whole Gotovina/Markač case. The fact is, and some of you may not like to hear it, that these two man and many others, have left everything behind in order to defend their country and what they believed in.

While looking for loopholes in the legal proceedings is welcoming, it may be useful to stop for a second and think why Gotovina and Markač found themselves on the battlefield in the first place.

It is because of Slobodan Milošević and the idea of Greater Serbia. The fact it is that things did not have to play out this way. It is also a fact that the communist hard-liners and die-hard Serbian nationalists in Belgrade, blessed by the Serbian Orthodox Church, chose this for all of us and people in Serbia let them start-up the war machinery, while turning the blind eye and being spectators in that grotesque in making.

The machinery started in Slovenia, spread south to Croatia, then Bosnia with culmination in Srebrenica, with the great crescendo in Kosovo and NATO bombing of Belgrade. Four wars in less than ten years fought in the name of an idea that was a radical nationalistic, irredentist political project based on of problematic interpretations of cultural identity and deliberate misinterpretations of historical events.

Everything that followed, followed precisely from that point onward and that is why we are here today arguing against the recent decision in favor of the acquittal.

As we all know, what goes around, comes around.

May we come to learn from our past mistakes, and may we not turn the blind eye to injustice ever again, for as Burke teaches us, all that is necessary for the triumph of evil is that good man do nothing.

Last week, the International Criminal Tribunal for the Former Yugoslavia (ICTY) Appeals Chamber overturned the convictions of Croatian Generals, Ante Gotovina and Mladen Markac, who had been accused of and convicted for crimes against humanity and war crimes by the ICTY Trial Chamber. Marko Milanovic has already provided excellent commentary on these cases. I agree with Marko’s analysis, but would like to take this opportunity to further comment on some of the most troubling aspects of the Appeals Chamber’s analysis and decision.
Marko has already pointed out that the Appeals Chamber failed to appropriately engage in appellate review, by identifying an allegedly fatal error in the Trial Chamber’s reasoning (the 200-meter margin of error standard in assessing the lawfulness of Croatian army’s shelling operations), and by then proceeding to examine the evidence de novo, piece-by-piece. Building on Marko’s overall argument, I will highlight some of these individual pieces of evidence, as well as some of the most troubling conclusions drawn by the Appeals Chamber about such evidence.
The Appeals Chamber examined the Gotovina Order of 2 August, to conclude that the Order itself did not constitute evidence of unlawful targeting against the Four Towns (Knin, Benkovac, Obrovac, Gracac). The 2 August Order, quoted in the Appeals Chamber’s decision (para. 70) directed Croatian army units to organize:
“along the main attack axes, focus on providing artillery support to the main forces in the offensive operation through powerful strikes against the enemy’s front line, command posts, communications centres, artillery firing positions and by putting the towns of… Knin, Benkovac, Obrovac and Gračac under artillery fire.”

The Appeals Chamber decided that because the 2 August Order did not explicitly order the shelling of unlawful targets, the Order could not on its own constitute evidence that such unlawful shelling took place. This conclusion is troubling on many levels. As Judge Agius pointed out in his dissent (paras. 35-36), the Trial Chamber did not rely only on the Gotovina Order to reach its conclusion about the unlawfulness of shelling operations; instead, the Trial Chamber examined the totality of the evidence alongside the Gotovina Order, such as the existence of other indiscriminate attacks against other towns in the Krajina region, the testimony of several witnesses, and the overall pattern of policies developed by the Croatian leadership to drive the Serbian population out of Krajina. The 2 August Order, when examined with all the other evidence on the record, provided ample support for the conclusion that the Croatian leadership engaged in unlawful targeting and non-discriminatory attacks against the Serbian population.
Moreover, the law of armed conflict places a specific obligation on military commanders not to engage in indiscriminate attacks. It is the military commander’s duty to properly train and instruct his or her troops about the appropriate targets in any military operation. A vague instruction, such as the Gotovina Order to put the Four towns “under artillery fire” should be interpreted against the commander, and in favor of the proposition that an order to put a given area under fire proves that the commander did not care about differentiating between military and non-military targets. After all, if troops are told to shell a town, how are the troops to know where legitimate military targets are to be found within the confines of a given town? The obligation was on Gotovina to properly instruct his troops as to which specific areas of the Four Towns should be shelled. Thus, even on its own, the 2 August Order provides evidence that unlawful shelling did take place.
Second, the Appeals Chamber reviewed the transcript from the infamous Brioni meetings, where General Govotina stated: “if there is an order to strike at Knin, we will destroy it in its entirety in a few hours.” (para. 81). The Appeals Chamber concluded that the Brioni transcript did not provide evidence that unlawful shelling was actually ordered. Almost amazingly, however, the Appeals Chamber did agree that the Gotovina statement, coupled with other background discussions at Brioni, provided support for the inference that the military attacks against the Four Towns were unlawful. Gotovina stated that if ordered, his troops would destroy Knin. Political orders were given to Gotovina to shell the Four Towns (including Knin), and Gotovina’s 2 August Order simply stated that the Croatian army should put Knin under artillery attack. This chain of evidence, when viewed in its totality, amply demonstrates that unlawful shelling was a cornerstone piece of the Croatian political and military leadership’s strategy of forcing Serbs to leave the Krajina region.
Third, the Appeals Chamber, in reviewing the Brioni transcript, concluded that absent the existence of unlawful attacks, the Brioni transcript could be interpreted as reflecting discussions among the Croatian leadership about helping civilians temporarily depart from the area of conflict (Krajina). Judge Pocar, in his dissent, called this conclusion “grotesque” (para. 26). Judge Pocar correctly argued that when examined in light of all the other evidence on the record (i.e., the 2 August Order mentioned above, eye witness testimony about shelling operations in the Four Towns, the post-Operation Storm Croatian property laws of a discriminatory nature which made it almost impossible for Serbs to own property in Croatia, and the installation of Croatian settlements in Krajina, in homes deserted by the Serbs), the Brioni transcript reflected discussion about the forceful manner in which civilians would be driven out permanently, not conversations about protecting such civilians and relocating them temporarily. Judge Pocar appropriately quoted (para. 26) from a speech given by President Tudjman two weeks after Operation Storm:
“Up until […] when it has been captured by Turkish Ottoman conquerors and together with them
the ones who stayed till yesterday in our Croatian Knin. But today it is Croatian Knin and never
again it will go back to what was before, when they spread cancer which has been destroying
Croatian national being in the middle of Croatia and didn’t allow Croatian people to be truly alone
on it’s [sic] own, that Croatia becomes capable of being independent and sovereign state. […]
They were gone in a few days as if they had never been here, as I said […] They did not even have
time to collect their rotten money and dirty underwear.”

The Tudjman speech, delivered in the wake of Operation Storm, does not lend support for the proposition that Croatian leadership wanted to protect Serbian civilians; instead, it provides evidence about a government policy of discrimination against the Serbs.
Finally, some commentators may feel that the Serbs were more responsible for atrocities committed in the Balkans, and that when compared to Karadzic and Mladic, Gotovina and Markac did not deserve to be treated as war criminals. I would argue that discussions about the degree of culpability of any political or military leader is a sentencing issue, and that once culpability is established, the ICTY sentencing judges can adequately address issues such as who was “more” guilty. In this instance, the ICTY Trials Chamber had appropriately sentenced Generals Gotovina and Markac. Their acquittal by the Appeals Chamber undermines the perception of the Hague Tribunal as a legal and apolitical venue for international criminal prosecutions. Instead, the acquittal appears driven by non-legal forces and factors. The acquittal may enhance the already existing wedge between Croats and Serbs and may dissuade Serbian leaders from cooperating with the ICTY in the future.

I think, your comment deals with a different aspect of the case than the one so far discussed here. Believing that Gotovina and Markač are innocent and have therefore been rightly acquitted is one thing. Saying that the decision acquitting them is not well argued and, hence, lacks in persuasiveness is another thing. So far, the debate has focused on the latter aspect. In other words, it is not the verdict in itself which is at stake but, rather, the argumentation on which this verdict relies.

Coming to your aspect: obviously, this is the old “The end justifies the means” maxim. Interesting to see how this maxim always disappears from the discourse after any human tragedy…only to come back at the next occasion. Well – is there truly any need to argue against it when so many people have already done so? And could anyone seriously believe that when pursuing valuable ends (what these ends are is a topic in itself), states and individuals are free to use any means they like?
Applying this to the case – again, it is one thing to doubt whether crimes against humanity and war crimes were committed in Krajina. It is quite another to say that have they been committed, nothing wrong actually happened and noone should be held accountable. I find this latter position truly abhorring – both as a lawyer and as a human being.

Unfounded accusations of ethnic bias of authors shouldn’t be written and really don’t have any place on a reputable legal blog, in my opinion. Such accusations are both ad hominem and wrongly assume that people of certain ethnicities can’t be objective about certain issues.

Ms. Sterio, that’s an excellent summary of some of the additional evidence.

I have read the appeals judgment, though not the trial judgment, so my comments are based only the discussion of the evidence in the former. I have to say that I am very surprised at the limited nature of the evidence regarding accuracy of indirect fire adduced by the prosecution and defence. I served as an infantry officer, including as mortar platoon commander in my infantry battalion, in the mid-1990s. I later became an army legal officer. I do not claim to be an expert, but have enough practical experience and training to appreciate the deficiencies in the evidence that led to the 200m standard being adopted by the Trial Chamber.

Without going too much into an exposition on the mechanics of indirect fire support, indirect fire generally has to be adjusted onto a target. In order to hit a target the artillery require to have the correct bearing and range from the exact location of the artillery piece to the exact location of the target. Using range tables (usually computerised) the elevation and charge needed to hit the target from the location of the artillery are calculated. One of the main factors affecting the accuracy of the initial shot is the fact that rarely will the precise location of the gun line and the target be known. Pre-GPS these locations were identified by map reading, although artillery with time could carry out a survey and obtain an accurate location for the gun line. Even small errors in map reading by both the gun line and the observer calling in the target (for example 100-200m at each end) have a corresponding impact on the accuracy of the first round fired in relation to the actual location of the target. The accuracy of that round is also affected by the factors discussed in witness Konings evidence, though errors from those factors that are relatively constant for a particular fire mission are also reduced once the target is adjusted.

For these kinds of reasons the first round fired from a gun or mortar line can have a considerable degree of inaccuracy. An observer then corrects subsequent adjusting rounds until the target is acquired and an order to fire for effect is given. This is what witness Leslie’s evidence (rejected by the Trial Chamber) was referring to when stating that the “first round” could be up to 400m off target, and based on my experience that sounds correct. The evidence by the other witnesses appears to be concerned with the accuracy of artillery firing on an acquired target (i.e. on final fire data based on the final adjusting round). The precise point of impact for all indirect fire weapons firing using a given set of fire data will vary with each shot, based on the kinds of factors discussed by the other witnesses, so that an indirect fire unit (an artillery battery, mortar platoon) will for operational planning purposes have a box shaped impact area based on the expected degree of variance in location of impact, and the lethal zone of the rounds fired. For example for a 105mm battery the box might be 250m square, and when planning fire support a battery fire mission would be expected to suppress everything within that box. So even when a target is adjusted there will be a zone within which the rounds land, rather than all rounds landing one of top of the other.

From the appeals judgment it also appears that the Croatian army did not even have all of the targets engaged under observation at the time, meaning that there was no possibility to adjust for errors in targeting a particular objective. If 95% of the rounds fired, at maximum range, impacted within 200m of a legitimate military target from fire units firing at maximum range (as stated in the links in Jens’ comment), with some fire being made without the benefit of observers to adjust fire, then it would seem, in my experience, difficult to categorise the fire as indiscriminate without other evidence. It seems to me that an impact analysis alone in those circumstances could not establish beyond reasonable doubt that artillery had been fired indiscriminately.

As I said at the commencement of this comment, the limited nature of the evidence on this issue surprised me, if it was a central part of the prosecution’s case that the shelling of the towns was indiscriminate. The Trial Chamber does not seem to have understood what Leslie meant when referring to the “first round” having an error margin of up to 400m, and preferred the evidence of the other witnesses when it seems that it is likely that they were talking about accuracy in a different context, i.e. the accuracy of rounds fired at an adjusted target.

I make no comment on the Appeal’s Chambers handling of other evidence for a JCE, not having read the trial judgment, but the Appeals Chamber was in my view correct to reject the 200m standard adopted by the Trial Chamber in assessing whether the shelling was indiscriminate.

Thank you for a very helpful comment. I think you are quite correct in saying that the evidence adduced at trial regarding the indiscriminate nature of the shelling was limited. I am not sure exactly why that was so; perhaps the prosecution or the trial chamber did not do a good enough job; perhaps it was objectively impossible to adduce anything more meaningful. So I would also agree that the Appeals Chamber was right in (unanimously) rejecting the 200m standard – the problem here being whether they could have articulated some other standard. Thus, as far as I understand Witness Leslie’s testimony, he stated that maximum range of error for the artillery pieces used by the Croatian Army was 400m for a first shot (and consequently less for any further shots, if they were adjusting their targeting in some way). Why not loosely use that standard then, particularly as there were a number of shells that fell outside that range, or were close to it? And of course note that the Trial Chamber did not base its finding solely on its impact analysis, but also on the orders the artillery units received, their own reports, testimony of witnesses present during the shelling, Brioni meeting transcripts, and the disproportionate nature of the attack on Martic’s residence. The majority of the Appeals Chamber in my view unreasonably discarded all of these one by one, as being inconclusive without the benefit of the impact analysis, rather than looking at them hollistically while paying due deference to the Trial Chamber.

I think one of the deficiencies of the Appeals Chamber judgment was the lack of discussion of the attack on Martic’s residence.
I tend to agree with the operational legal experts in the amicus who contended that the Trial Chamber has mistakenly characterised that attack as unproportional. After all, the leader of the enemy is surely a target of exceptionally high military value.
Moreover, there is not much discussion of the potential presence of mobile targets. I again agree with the Appeal Chamber rejection of the Trial Chamber’s position on this issue. If even the Trial Chamber acknowledged the presence of tanks in the cities, it is pretty dificult to see why they should not be involved in the proportionality equation…

These two important issues in my opinion quite possibly reinforce the Appeal Chamber judgment that based on the adduced evidence, the military operation does not seem to be disproportionate. However, of course this might simply be the result of the inadequate work of the Prosecution…

Your post, which I enjoyed reading, raises very interesting points. I’m posting here a few comments.

As regards the argument, which also appears in the dissents of Judges Agius and Pocar, that the Trial Chamber did not assign “such importance” to the 200-meter standard, that is simply untenable. On any credible analysis of the Judgment, the 200-meter standard was in fact the lynchpin of the entire case, as the Appeals Chamber found. That is why unlawful attacks were found in the 4 towns but not any others in the Krajina; because only in relation to those 4 towns did the 200-meter standard show a number of shells impacting outside the 200 meters. The Trial Chamber considered unlawful artillery attacks to be the core indicator that the crime of deportation had taken place or in other words, the primary means by which the forced departure of Serb civilians from the Krajina region was effected. By contrast, Serb civilians’ departure at the same time or in the immediate aftermath of artillery attacks was not categorised as deportation where artillery attacks were not found to have been unlawful. Having reversed the Trial Chamber’s finding that artillery attacks on the four towns were unlawful (because of the unanimous rejection of the 200-meter standard), the majority of the Appeals Chamber considered unsustainable the Trial Chamber’s finding of the existence of a joint criminal enterprise with the common purpose of permanently and forcibly removing the Serb population from the Krajina.

As regards other evidence relating to the assessment of the lawfulness or otherwise of the artillery attacks, it’s worth pointing out that the Appeals Chamber found that this evidence, even considered in its totality, did not definitively demonstrate that artillery attacks against the four towns were unlawful. As regards the circumstantial evidence relating to the existence of the JCE, absent the finding that artillery attacks were unlawful, the Appeals Chamber was not able to affirm the Trial Chamber’s conclusion that the only reasonable interpretation of the circumstantial evidence on the record (there was no direct evidence of a JCE) was that a JCE aiming to permanently and forcibly remove the Serb civilian population from the Krajina existed. In this context, it should be noted that it is a myth that many weak pieces of evidence amount, collectively, to a strong case. Weak evidence is not mutually reinforcing but, if anything, mutually weakening. The metaphor of a chain being only as strong as its weakest link is the most appropriate one to bear in mind when one considers a criminal trial, where the prosecution must prove guilt beyond a reasonable doubt, to the exclusion of any other reasonable interpretations of the evidence. And if you remove one piece of so-called mutually reinforcing evidence, the pyramid is bound to collapse – like a house of cards – as happened in this case. This is even more so if the remaining evidence is not only linked to the unlawful attacks finding but is assessed and interpreted in light of the unlawful artillery finding; in this case, the Trial Chamber linked every incriminating finding against the accused to its unlawful artillery finding, even findings related to an alleged “climate of impunity”.

Interestingly, a review of the transcript of the appeal hearings (which I advise everyone to read) that took place on 14 May 2012 (see AT.14 May 2012, pp. 12-225) where Counsel for the appellants argued at length, and convincingly (so convincingly that the Prosecution shifted to an argument that deportation could occur even by means of lawful shelling – an argument apparently never advanced before at trial or appeal) how all of the Trial Chamber’s findings regarding the responsibility of the appellants hung on the 200-meter standard and the Trial Chamber’s finding regarding the unlawful artillery attack, neither Judge Pocar nor Judge Agius, who both disagreed with the majority on the relevance of the 200-meter standard, asked a single question on this issue. If they were so convinced that the Trial Judgment did not hang on the 200-metre standard, they were duty-bound, in fairness to the appellants, to raise the points then in oral argument.

On the issues of unlawful artillery attacks, I would also bring to your attention the “Application and proposed amicus curiae brief concerning the 15 April 2011 Trial Chamber judgment and requesting that the Appeals Chamber reconsider the findings of unlawful artillery attacks during operation storm”, filed on 12 January 2012 by twelve former military legal advisors from land, air, and naval forces who served in both operational and legal positions in their respective armed force (available at http://icr.icty.org/LegalRef/CMSDocStore/Public/English/Application/NotIndexable/IT-06-90-A/MSC7958R0000353013.pdf). The proposed amicus curiae brief, which the Appeals Chamber in its “Decision on application and proposed Amicus Curiae brief” decided not to allow, analyses the law regarding the legality of targeting and discusses whether particular artillery attacks which were analyzed by the Trial Chamber complied with specific tenants of international humanitarian law. On the implications of the 200-meter rules for other military operations see the following blog and other documents referred to therein: Could the Gotovina Judgement be Used Against the British Army (available at http://ilawyerblog.com/could-the-gotovina-judgement-be-used-against-the-british-army/)

As regards the criticism of a divided 3:2 decision by the Appeals Chamber, this case is no different from any other case where judges where split in their decision. The judgement against Rasim Delić, a Bosnian Muslim, who was a former commander of the Army of Bosnia-Herzegovina, did not receive, as far as I know, as much attention and criticism as the judgement in Gotovina and Marakč case, although a Trial Chamber convicted him by majority 2:1 on one count. He was unanimously acquitted for three other counts. The Presiding Judge, Judge Moloto, who was the only permanent judge in that Trial Chamber, voted for his acquittal while two ad litem judges, one of whom was a former ICTY Prosecutor, voted for his conviction on that count. Consequently, he was sentenced to 3 years ‘imprisonment. Judge Moloto did not agree with the majority’s finding that Delić exercised effective control over the perpetrators of the relevant crimes. Unfortunately, Delić died a few days before the Appeals Chamber was to deliver its judgement on appeal where an acquittal was a probable outcome. But if you read Judge Moloto’s dissenting opinion in Delić, you will see that his dissent is persuasive yet respectful when explaining the disagreement with the majority. In contrast, the dissenting judges in Gotovina and Markač, on whose dissenting opinion the comment above relies, use inappropriate language which, if anything, damages the very institution they represent rather than making their dissents more powerful and persuasive.

As regards the comment that the ICTY’s reputation is in tatters with Serbia, I would note that every acquittal of non-Serbs by the ICTY results in the Serbs calling the ICTY biased. For example, when Naser Orić was acquitted (the Appeals Chamber reversed the judgement of the Trial Chamber which was presided by Judge Agius) back in 2008, the Institute for War and Peace Reporting reported (available at http://iwpr.net/report-news/oric-acquitted-appeals-hearing) as follows:

In Serbia, President Boris Tadic said the acquittal was “scandalous”, and former justice minister Vladan Batic told local media that the appeals chamber’s decision represented “a collapse of justice and of the tribunal”.

The Serbs reacted the same way to the acquittals of other Bosnian Muslims and Kosovo Albanians. The Serbs have been arguing for the last 17 years that the ICTY is biased, while at the same time being publicly criticised by the ICTY for its non-cooperation (in respect of which read the Annual Reports of the ICTY for the for the first decade of its existence).

I hope that your comment will not be understood as meaning that the Generals’ convictions should have been upheld because that would better deal with Croatian and Serb nationalism. It is clearly unacceptable to argue for people to be convicted not for what they have done, but for how the verdicts play in the region. What matters is the evidence and not peoples’ perception of guilt or innocence of an accused. Not everyone indicted by the ICTY is automatically responsible for the crimes charged. To think otherwise and expect that everyone charged by the ICTY should be convicted makes a mockery of the presumption of innocence and would mean that the trials before the ICTY are nothing more than show trials. In my view, this judgement shows that the ICTY can resist political pressure. At the end of the day it would have been much easier and more convenient for the ICTY to convict the two Generals in order to to justify 7 years of proceeding and millions of dollars expanded on this case than to do as it did.

The acquittals obviously do not discharge Croatia from its obligation to investigate and prosecute all international crimes, including crimes committed by Croatian armed forces during the war in the former Yugoslavia. The Appeals Chamber did not deny the Trial Chamber’s findings that crimes were committed against Serb population by Croatian military forces in the Krajina regions, including murders, destruction and plunder. This case, however, only deals with the responsibility of Gotovina and Markač and not the responsibility of any other individuals or Croatia’s responsibility for any such crimes. Although some progress has been made in recent years, the Croatian authorities are reportedly still failing to investigate allegations against some high profile military and political officials. Croatia’s next step is to fulfill its obligation to ensure access to justice, truth and reparation to victims of these crimes. Other republics of the former Yugoslavia, including BiH, Montenegro and Serbia, face similar challenges in removing obstacles to domestic criminal investigation and prosecution of international crimes committed during the Yugoslav conflict.

Thanks a lot for your very detailed comment. Obviously we disagree fundamentally in our appraisal of the judgment, and there is little to add to that. I will just briefly make a couple of points:

(1) Even if yours and the majority’s judges’ appraisal of the facts is correct – or let’s say reasonable – that does not take into account the standard of appellate review that is to be applied, and the proper division of labour between the different chambers of the Tribunals. Let me accept arguendo that a reasonable Trial Chamber, consisting say of Judges Meron, Robinson, and Guney, could have acquitted Gotovina and Markac on the evidence presented in the case. But accepting this does not ipso facto entail that NO reasonable trial chamber could have convicted them on the same evidence, which is what the proper standard of review is.

(2) In that regard, it seems to me that no credible (as you put it) interpretation of the majority appeals judgment could claim otherwise but say that the judges were acting in a strictly deconstructive mode, essentially looking at the evidence de novo and substituting their own views for those of the trial judges. That is my fundamental objection to the whole thing.

(3) I fully accept your point that several weak items of evidence taken together do not make a strong case. But other than the Impact Analysis, the evidence for the indiscriminate shelling of the four towns or for the existence of the JCE, e.g. the Brioni transcripts, could hardly be described as ‘weak.’ These items could perhaps be fairly described as inconclusive when taken individually (e.g. the instruction to artillery to ‘shell the towns’ could be charitably interpreted as not refering to the towns as such but to the military targets in them), but when you add a number of pieces of evidence like this together you can see a pattern that you wouldn’t necessarily discern from observing each item individually. That is precisely why each criminal system of criminal procedure that I am reasonably familiar with instructs the trier of fact to look at the evidence not just individually, but also hollistically, taken as a whole (as does e.g. Art 368(2) of the Croatian Code of Criminal Procedure).

(4) And again I don’t object to de novo review as such, or to the appellate judges substituting their own views for those of the trial judges. What I do object to is de novo review without the tools that systems which employ such review use (e.g. the Serbian or the Croatian one) – remand or full re-trial before the appellate court – that allow for the correction of any factual deficencies at trial. It’s one thing for doubt to benefit the accused; it’s another to demand absolute perfection from the evidentiary proceedings at trial with no possibility for correction.

(5) Finally, as for the whole 3 to 2 thing, of course that this case is some ways like any other in which judges dissent – that’s the whole point of dissent. But I, for one, can’t think of a case in which an Appeals Chamber divided 3 to 2 reversed a unanimous Trial Chamber ON THE FACTS and disregarded all of its key factual findings. Can you? (I ask genuinely, of course). I don’t think there’s any such example, and this precisely indicates how the majority’s attitude towards the facts as established by the Trial Chamber was far from deferential. And it makes matters far worse as a matter of public perceptions, together with the venomous tone of the dissents (which I agree was disrespectful, but may or may not have been well deserved). For me, at least, public perceptions certainly do matter, even if they are not a reason to convict innocent people.

[…] on the Court to be seen to act professionally and impartially. Observers such as Marko Milovanovic have argued that the Appeals Chamber failed this test in Gotovina, overturning a unanimous and comprehensive […]

Milanovic please keep in mind that 4 “Serb” towns in Croatia’s Krajina were Croatian towns emptied of non Serbs by Serbian military attacks and forcible expulsion. Moreover these towns were in recognized and legitimate territory of Croatia in both Yugoslavia and within the recognized international borders of the state of Croatia. Your immunity to nationalism may be slipping. I am curious that if there is such concern for justice why there is no passion from EJIL about the tragedy of Vukovar? The Yugoslav / Serbia command responsibility was never tried in totality for the utter destruction of that city, indiscriminate shelling and death of civilians, and the massacres, torture, murders, looting and thievery that followed the Serb ‘victory’?

About the Author(s)

Marko Milanovic

Dr Marko Milanovic is associate professor at the University of Nottingham School of Law. He is co-editor of EJIL: Talk! and a member of the EJIL's Editorial Board, as well as Vice-President and member of the Executive Board of the European Society of International Law. Read Full